Jenkins v. Pech et al

Filing 156

ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT - IT IS ORDERED: In compliance with the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4, counsel for Defendants shall serve written notice of the proposed class settlement on the United States Attorney General, the Attorney Generals for the State of Nebraska and the State of Illinois within fourteen (14) days after entry of this Order. This action will be maintained as a class action on behalf of the following class of plaintiffs (hereinafter, "Jenkins Class Members"): (a) All persons residing in Nebraska (b) to whom Defendants Christopher E. Pech and/or Pech, Hughes & McDonald, P.C. sent, or caused to be sent, a letter in the form of Exhibit A (attac hed to the First Amended Complaint), (c) in an attempt to collect a purported obligation which, as shown by the nature of the alleged obligation, Defendants' records, or the records of the original creditors, was primarily for personal, famil y, or household purposes. Excluded from the class is: a. Any person who is already subject to an existing release; b. Any person who is deceased; c. Any person who has filed for bankruptcy protection under Title 11 of the United States Code; and d. Any Class Member who timely mails a request for exclusion. The Class Period runs from February 6, 2013 through June 12, 2015. Plaintiff Lee A. Jenkins is designated as class representative and William L. Reinbrecht and Pamela A. Car of the law fir m Car & Reinbrecht, P.C., L.L.O., and attorney O. Randolph Bragg of the law firm Horwitz, Horwitz & Associates, LTD, are designated as counsel for the class. For settlement purposes only, the court preliminarily finds that the Lawsuit satisfies t he applicable prerequisites for class action treatment under Fed. R. Civ. P. 23. The parties proposed Class Action Settlement Agreement, Filing No. 154-2, Ex. 1A (Filing No. 154-2 at ECF pp. 7-21) is preliminarily approved and is incorporated her ein as if fully set forth. The Court shall conduct a hearing (hereinafter referred to as the "Fairness Hearing") on February 19, 2016, at the Roman L. Hruska U.S. Courthouse, 111 South 18th Plaza, Omaha, Nebraska, 68102, Court Room 3, co mmencing at 1:00 p.m. Plaintiff shall file his petition for an award of attorney's fees, costs, and expenses within thirty (30) days of entry of the Final Order unless otherwise ordered. The Court retains continuing and exclusive jurisdiction over the action to consider all further matters arising out of or connected with the settlement, including the administration and enforcement of the Agreement. Ordered by Senior Judge Joseph F. Bataillon. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LEE A. JENKINS, on behalf of himself and
all others similarly situated;
8:14CV41
Plaintiff,
v.

ORDER PRELIMINARILY APPROVING
CLASS ACTION SETTLEMENT

CHRISTOPHER E. PECH, AND
PECH,HUGHES, & MCDONALD, P.C.,
d/b/a Litow & Pech, P.C., A Fictitious
Name;
Defendants.

The court is advised that the parties to this action, through their respective
counsel, have agreed, subject to court approval and following notice to the purported
class members and a hearing, to settle the above-captioned lawsuit (the “Lawsuit”)
upon the terms and conditions set forth in the Class Action Settlement Agreement (the
“Agreement”), Filing No. 154-2, Ex. 1A. The court incorporates the definitions set forth
in the Agreement (with capitalized terms as set forth in the Agreement). In accordance
with the findings set forth in the Memorandum and Order filed concurrently this date,
IT IS ORDERED:
1.

In compliance with the Class Action Fairness Act of 2005, Pub. L. No.

109-2, 119 Stat. 4, counsel for Defendants shall serve written notice of the proposed
class settlement on the United States Attorney General, the Attorney Generals for the
State of Nebraska and the State of Illinois within fourteen (14) days after entry of this
Order.
2.

This action will be maintained as a class action on behalf of the following

class of plaintiffs (hereinafter, "Jenkins Class Members"):

(a) All persons residing in Nebraska (b) to whom Defendants Christopher
E. Pech and/or Pech, Hughes & McDonald, P.C. sent, or caused to be
sent, a letter in the form of Exhibit A (attached to the First Amended
Complaint), (c) in an attempt to collect a purported obligation which, as
shown by the nature of the alleged obligation, Defendants’ records, or the
records of the original creditors, was primarily for personal, family, or
household purposes.
Excluded from the class is:
a.

Any person who is already subject to an existing
release;

b.

Any person who is deceased;

c.

Any person who has filed for bankruptcy protection
under Title 11 of the United States Code; and

d.

Any Class Member who timely mails a request for
exclusion.

The Class Period runs from February 6, 2013 through June 12, 2015.
3.

Plaintiff Lee A. Jenkins is designated as class representative and William

L. Reinbrecht and Pamela A. Car of the law firm Car & Reinbrecht, P.C., L.L.O., and
attorney O. Randolph Bragg of the law firm Horwitz, Horwitz & Associates, LTD, are
designated as counsel for the class.
4.

For settlement purposes only, the court preliminarily finds that the Lawsuit

satisfies the applicable prerequisites for class action treatment under Fed. R. Civ. P. 23.
5.

The parties proposed Class Action Settlement Agreement, Filing No. 154-

2, Ex. 1A (Filing No. 154-2 at ECF pp. 7-21) is preliminarily approved and is
incorporated herein as if fully set forth.
6.

The Court preliminarily finds that the settlement of the Lawsuit, on the

terms and conditions set forth in the Agreement, is in all respects fundamentally fair,

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reasonable, adequate, and in the best interest of the Jenkins Class Members, especially
in light of the benefits to the class members; the complexity, expense, and probable
duration of further litigation; the risk and delay inherent in possible appeals; the risk of
collecting any judgment obtained on behalf of the class; and, the limited amount of any
potential total recovery for the class.
7.

The form and substance of the Notice of Class Action Settlement, Filing

No. 154-2, Ex. B (Filing No. 154-2 at ECH pp. 23-29) is approved.
8.

In accordance with the Agreement, Defendants, through the Settlement

Administrator, shall cause the completed notices to be mailed to the Jenkins Class
Members by first class mail as expeditiously as possible, but in no event later than
14 calendar days after the entry of this order.

The Settlement Administrator shall

confirm and, as necessary, update the addresses for the Jenkins Class Members
through the standard methodology that the Settlement Administrator currently uses to
update addresses which shall include use of the National Change of Address (NCOA)
system.
9.

Any Jenkins Class Member who desires to be excluded from the class

must send a written request for exclusion to the Settlement Administrator with a
postmark date no later than sixty-five days after the Court’s entry of this order. To be
effective, the written request for exclusion must state: the name and case number of
this case, the Jenkins Class Member's full name, address, and telephone number; and
that the Jenkins Class Member wishes to be excluded. The Settlement Administrator
shall provide a list of the names of each Jenkins Class Member who submitted a timely
exclusion to counsel for Defendants and Class Counsel within 10 business days after
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the deadline passes. A copy of this list will be filed with the Court, along with the
Parties’ Motion for Final Approval of Class Action Settlement.

Any Jenkins Class

Member who submits a valid and timely request for exclusion shall not be bound by the
terms of the Agreement.
10.

Any Jenkins Class Member may enter an appearance through an attorney

if the member so desires.
11.

Any Jenkins Class Member who intends to object to the fairness of this

settlement must file a written objection with the Court, at the office of the Clerk of the
United States District Court for the District of Nebraska, Roman L. Hruska U.S.
Courthouse, 111 South 18th Plaza, Suite 1152, Omaha, Nebraska, 68102, within sixtyfive days from the Court’s entry of this order. Further, any such Jenkins Class Member
must, within the same time period, provide a copy of the written objection to Class
Counsel, Attention: Jenkins Settlement, 0. Randolph Bragg, Horwitz, Horwitz &
Associates, Ltd., 25 East Washington Street, Suite 900, Chicago, Illinois 60602, and
counsel for Defendants, Attention: Jenkins Settlement, Tomio B. Narita, Simmonds and
Narita LLP, 44 Montgomery Street, Suite 3010, San Francisco, California 94104.
To be considered, the written objection must state: his or her full name, address, and
telephone number; the reasons for his or her objection; and, whether he or she intends
to appear at the fairness hearing on his or her own behalf or through counsel. Any
Jenkins Class Member who does not file a valid and timely objection to the settlement
shall be barred from seeking review of the settlement by appeal or otherwise. Any
Jenkins Class Member who does not file a valid and timely objection to the settlement
shall be barred from seeking review of the settlement by appeal or otherwise.
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12.

The Court shall conduct a hearing (hereinafter referred to as the “Fairness

Hearing”) on February 19, 2016, at the Roman L. Hruska U.S. Courthouse, 111 South
18th Plaza, Omaha, Nebraska, 68102, Court Room 3, commencing at 1:00 p.m. to
review and rule upon the following issues:
A.

Whether this action satisfies the applicable prerequisites for class action
treatment for settlement purposes under Fed. R. Civ. P. 23;

B.

Whether the proposed settlement is fundamentally fair, reasonable,
adequate, and in the best interest of the Jenkins Class Members and
should be approved by the Court;

C.

Whether the Final Order and Judgment, as provided under the
Agreement, should be entered, dismissing the Lawsuit with prejudice and
releasing the Released Claims against the Released Parties; and

D.

To discuss and review other issues as the Court deems appropriate.

13.

Attendance at the Fairness Hearing is not necessary.

Jenkins Class

Members need not appear at the hearing or take any other action to indicate their
approval of the proposed class action settlement. Jenkins Class Members wishing to
be heard, however, are required to indicate in their written objection whether or not they
intend to appear at the Fairness Hearing. The Fairness Hearing may be postponed,
adjourned, transferred, or continued without further notice to the Jenkins Class
Members.
14.

Submissions by the Parties, including memoranda in support of the

proposed settlement and responses to any objections, by Class Counsel, shall be filed
with the Court no later than seven (7) days prior to the Fairness Hearing.
15.

The Agreement and this Order shall be null and void if any of the following

occur:

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A.

The Court rejects, in any material respect, the Final Order and
Judgment substantially in the form and content attached to the
Agreement and/or the Parties fail to consent to the entry of another
form of order in lieu thereof;

B.

The Court rejects any component of the Agreement, including any
amendment thereto approved by the Parties; or

C.

The Court approves the Agreement, including any amendment
thereto approved by the Parties, but such approval is reversed on
appeal and such reversal becomes final by lapse of time or
otherwise.

16.

If the Agreement and/or this order are voided per Paragraph 15 of this

order, then the Agreement shall be of no force and effect and the rights and defenses of
Plaintiff and Defendants shall be restored, without prejudice, to their respective
positions as if the Agreement had never been executed and this order never entered.
17.

Plaintiff shall file his petition for an award of attorney's fees, costs, and

expenses within thirty (30) days of entry of the Final Order unless otherwise ordered.
18.

The Court retains continuing and exclusive jurisdiction over the action to

consider all further matters arising out of or connected with the settlement, including the
administration and enforcement of the Agreement.
Dated this 4th day of November, 2015
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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